December 28, 2011

In Bigbee v. Pacific Telephone and Telegraph Company (1983) 34 Cal.3d 49, the Cal Supremes during one of their more, um, interesting eras, ruled that the phone company had a duty not to locate a telephone booth 15 feet from a parking lot where a drunk driver might jump the curb and run into it, injuring the poor shcnook in the booth just trying to make a call.

Then there was Gonzales v. Southern California Gas S188956, in which the Fourth District Court of Appeal held the gas company owed no duty in connection with its placement of a gas meter more than 11 feet from the curb in a 25 mph residential zone; the teenage driver decedent in the case took evasive action to avoid another car, jumped the 8 foot curb, smashed into the gas meter, caused a fire and died from her burns.

Next was Cabral v. Ralphs Grocery Co.(2011) 51 Cal. 4th 764, where the modern-day, much more conservative 21st century Cal Supremes found that a truck driver had a duty not to park his truck on the dirt shoulder 16 feet off the Interstate freeway while he was stopped for a snack, resulting in his being struck by the decedent's pickup which, while going 70 - 80 miles per hour, swerved off the freeway and into the shoulder, rearending the truck driver.

As CBL predicted, the Supremes then sent the no-liability decision in Gonzales back to the Court of Appeal for a do-over. The results of which were published earlier this month. And after considering the Cabral decision, the Court of Appeal re-issued the Gonzales decision with the same result: no legal duty. Said the Court of Appeal, this case is not the same as Cabral. There, the negligent truck driver was on the shoulder adjacent to freeway traffic going 70 - 80 miles per hour. So cars and trucks and pickups are foreseeably going to go flying all over the place.

But in Gonzales, the adjacent roadway had a speed limit of 25 mph. And it is not foreseeable, said the court, that cars at that very low speed are going to fly into gas meters 11+ feet away. Legal duty requires forseeablility and is decided as a matter of law. And the Court of Appeal ruled that there was no foreseeability as a matter of law and therefore, no legal duty.

Unlike SCOTUS, which sometimes hears the same or similar issues repeatedly (particularly when it wants to spank the 9th Circuit or reinforce its message that the California courts can't mess with arbitration), Cal Supremes don't grant hearings to decide issues they have already decided. So they almost certainly won't be hearing Gonzales. But they do have the authority to "depublish" lower court decisions they don't like; this means the decisions lose their stare decisis value and are binding only on the parties. Although CBL thinks the Gonzales court has the better argument, its decision looks like a prime candidate for depublication.